Public Notice of Formal Investigations

In the matter of the Petition to Create Supreme Court Rule 22.21m Relating to Public Notice of Formal Investigations in the Public Interest.

Order 13-12

On Aug. 28, 2013, the Board of Administrative Oversight and Office of Lawyer Regulation filed this petition asking the court to create a new rule, Supreme Court Rule SCR 22.21m, that will establish standards and procedures for providing public notice of formal investigations of attorney misconduct and medical incapacity when required to protect the public.

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Monday, Feb. 24, 2014, at 9:45 a.m.

IT IS FURTHER ORDERED that the court’s conference in the matter shall be held promptly following the public hearing.

IT IS FURTHER ORDERED that notice of the hearing be given by a single publication of a copy of this order and of the petition in the official state newspaper once each week for three consecutive weeks, and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 9th day of December, 2013.

By the court:

Diane M. Fremgen, Clerk of Supreme Court

Petition to Create SCR 22.21m

The Board of Administrative Oversight and Office of Lawyer Regulation hereby petition the Supreme Court of Wisconsin for an order creating Supreme Court Rule (SCR) 22.21m.

Petitioners submit Appendix A (the text of proposed rule), Supporting Memorandum, and Cover Sheet in support of this request.

Respectfully submitted,

Rod W. Rogahn, Chair, Board of Administrative Oversight

Keith L. Sellen, Director, Office of Lawyer Regulation

APPENDIX A

SCR 22.21m Public notice of formal investigation.

(1) The supreme court, on its own motion, upon the motion of the director or upon the motion of a special investigator acting pursuant to SCR 22.25, may authorize the director or special investigator to issue public notice of a pending formal investigation into an attorney’s possible misconduct or medical incapacity. The supreme court may authorize public notice when:

(a) the attorney’s continued practice of law presents substantial risk of physical, financial, or legal harm to the attorney’s clients or other persons,

(b) an attorney is unable to adequately attend to clients’ interests due to physical absence, abandonment of the practice, or physical or medical incapacity,

(c) the attorney is engaged in a pattern of conduct involving the receipt of advanced fees and the subsequent failure or inability to perform legal services for which the fees were advanced,

(d) the attorney is engaged in a pattern of criminal or fraudulent conduct, or

(e) in the judgment of the supreme court, other good cause exists.

(2) Before authorizing the director or special investigator to issue public notice of a pending formal investigation under sub. (1), the supreme court shall order the attorney to show cause why the notice should not issue. The attorney shall file with the supreme court a written response to the order and serve a copy of the response on the director within the time set forth in the order. The director, or special investigator acting under SCR 22.25, may file a reply within 10 days after the attorney’s response is filed. All papers, files, transcripts, communications, and proceedings shall be confidential and shall remain confidential.

(3) Public notice of pending formal investigation. Upon the authorization of the supreme court to issue public notice of a pending formal investigation, the director, or special investigator acting under SCR 22.25 shall post notice of the formal investigation on the office of lawyer regulation website. The director or special investigator shall complete the formal investigation within 6 months of the issuance of the notice of formal investigation, or shall show cause why the investigation cannot be completed. The director or special investigator shall remove the notice upon any of the following:

(a) The director or special investigator has dismissed the matter for lack of sufficient evidence of cause to proceed as provided in SCR 22.05(1)(a) or SCR 22.25(4)(a).

(b) The respondent has signed an agreement to divert the matter to an alternatives to discipline program as provided in SCR 22.10.

(c) The referee appointed as provided in SCR 22.09 has approved an agreement to the imposition of a private or public reprimand.

(d) The director or special investigator has filed a complaint with the supreme court as provided in SCR 22.11.

Judges’ Obligation to Facilitate Litigants’ Ability to Be Fairly Heard

In the Matter of the Petition to Amend Supreme Court Rule 60.04.

Order 13-14

On Sept. 13, 2013, the Wisconsin Access to Justice Commission filed a petition requesting the court amend Supreme Court Rule (SCR) 60.04 to clarify that reasonable efforts to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard are consistent with a judge’s obligation to perform all judicial duties fairly and impartially.

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Monday, Feb. 24, 2014, at 9:45 a.m.

IT IS FURTHER ORDERED that the court’s conference in the matter shall be held promptly following the public hearing.

IT IS FURTHER ORDERED that notice of the hearing be given by a single publication of a copy of this order and of the petition in the official state newspaper once each week for three consecutive weeks, and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 9th day of December, 2013.

By the court:

Diane M. Fremgen, Clerk of Supreme Court

Petition to Amend SCR 60.04

This rule proposal comes before the Wisconsin Supreme Court upon the petition of the Wisconsin Access to Justice Commission.

This petition is made pursuant to the supreme court’s administrative authority over all courts conferred by Article VII, Section 3 of the Wisconsin Constitution.

Section 1. Supreme Court Rule 60.04 (1) (g) is amended to read:

SCR 60.04 (1) (g) A judge shall accord to every person who has a legal interest in a proceeding, or to that person’s lawyer, the right to be heard according to law. A judge may not initiate, permit, engage in or consider ex parte communications concerning a pending or impending action or proceeding except that:

In disposing of matters promptly,and efficiently and fairly, a judge must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary cost or delay. Containing costs while preserving fundamental rights of parties also protects the interests of witnesses and the general public. A judge should monitor and supervise cases so as to reduce or eliminate dilatory practices, avoidable delays and unnecessary costs. A judge should encourage and seek to facilitate settlement, but parties should not feel coerced into surrendering the right to have their controversy resolved by the courts.

Prompt disposition of the court’s business requires a judge to devote adequate time to judicial duties, to be punctual in attending court and expeditious in determining matters under submission, and to insist that court officials, litigants and their lawyers cooperate with the judge to that end.

Section 4. Supreme Court Rule 60.04 (1) (i) is created to read:

SCR 60.04 (1) (i) A judge shall uphold and apply the law and shall perform all duties of judicial office fairly and impartially. A judge shall also afford to every person who has a legal interest in a proceeding, or to that person’s lawyer, the right to be heard according to the law. It is consistent with this rule for a judge to make reasonable efforts to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard.

A judge should exercise discretion consistent with the law and court rules to help ensure that all litigants are fairly heard. A judge’s responsibility to promote access to justice, combined with the growth in litigation involving self-represented litigants, warrants more frequent exercise of such discretion using techniques that enhance the process of reaching a fair determination in the case. While the appropriate scope of such discretion and how it is exercised will vary with the circumstances of each case, a judge’s exercise of such discretion will not generally raise a reasonable question about the judge’s impartiality. Reasonable steps that a judge may take in the exercise of such discretion include, but are not limited to, the following:

1. Construe pleadings to facilitate consideration of the issues raised.

2. Provide information or explanation about the proceedings.

3. Explain legal concepts in everyday language.

4. Ask neutral questions to elicit or clarify information.

5. Modify the traditional order of taking evidence.

6. Permit narrative testimony.

7. Allow litigants to adopt their pleadings as their sworn testimony.

8. Refer litigants to any resources available to assist in the preparation of the case or enforcement and compliance with any order.

9. Inform litigants what will be happening next in the case and what is expected of them.